Thursday, June 24, 2004

Not So Fast

So Michael Moore was on the radio this morning, and one of the morning show hosts called him out on his use of half-truths to spin an opinion as fact. Moore defended himself, challenging the host for an example. The host came up with the Fred Barnes incident involving The Iliad and The Odyssey. Moore fought back, claiming that he was in the right on this one, and that his web site documented such.

Well, after much searching, I finally came accross what Mike must have been referring to. Here's the rundown:

Moore claimed that Fred Barnes didn't know what The Iliad and The Odyssey were, and that Barnes admitted as much in a telephone conversation. Barnes claims the conversation never took place.

Moore's site has this to say about the incident, claiming that a conversation did take place in 1988 where he gave Barnes a pop quiz on the classics, which Barnes failed (the questions were things like "Who killed Achilles?"). A story about the quiz appeared in the Washington Times that year.

OK, so here's my problem with this. First, the Washington Times article appears to be on Moore's own word, and I fail to see how an allegedly fabricated claim can be supported by a reference to an earlier incarnation of a similar claim by the same person accused of lying. Second, even if the interview is true, how does not remembering details from the classics (even if embarassing) support the claim the he didn't know what they were about? (Here, I'm taking Barnes's word on what Moore actually said in his book, Stupid White Men, but Moore does not challenge that he wrote that Barnes didn't know what they were about).

If someone asked me to do some calculus today and I failed, they would not be entitled to say I never took calculus, or that I didn't know what calculus was. Things we learned years ago fade with time, but it doesn't mean we weren't better off for having learned them (developing thinking skills, problems solving ability, discipline, etc.). Further, the truth of a lesser ignorance does not validate claiming a greater, untrue ingnorance. Poor support, poor website (no search function), and another reason I won't be shelling out the dough to see Fahrenheit 9/11.

Tuesday, June 22, 2004

Got Fuel?

Monday, June 21, 2004

Privilege Indeed

Eugene Volokh posts here about the Fifth Amendment aspect of the Supreme Court's decision in Hiibel v. Sixth Judicial District Court of Nevada, on which ground Justice Stevens dissented on. Specifically, Volokh notes that Stevens' reasoning about one's identity being evidence which may in fact incriminate them points rather persuasively towards applying the Fifth Amendment to cases where someone is forced to identify themselves to police officers. At least, it is more persuasive than the majority's reasoning, which simply states that identifying information is rarely, if ever, incriminating evidence.

But in my mind, the majority's reasoning is the only way to go in these types of cases. Although identity is an element of every crime (hence the requirement of an in-court ID at some point in every trial), when is identity truly incriminating evidence? For identity to mean anything there must be other facts known or discoverable to law enforcement in order to justify bringing down the hammer of justice; identity, whether it be by name (quite convenient in our society), number, a picture, barcode tatooed on the back of the neck, or eyewitness identification, is a means of attaching other facts that fulfill criminal elements to a real-life person. Identity has no other incriminating value in and of itself.

If the Fifth Amendments' privilege against self-incrimination truly applied to all identification obtained from a person, presumably this would only apply to compelling an oral identification, but even to searching the suspect's wallet upon arrest for a drivers license. After all, the police cannot compel a person to incriminate themselves based on "probable cause," and may not obtain a warrant for a confession, so it would seem that a suspect in a criminal investigation could never be the source of his or her own identity if the Fifth Amendment truly applied here.

A textualist interpretation of the Fifth Amendment could get around these odd scenarios, but it seems to me that the majority, as well as the three dissenters who analyze the case under the Fourth Amendment, take the correct path, an adopt a common sense approach to identity and the self-incrimination privilege. The light reflecting off of a suspect's face, enabling the police to see him, could also lead to a criminal conviction, but would certainly not violate the Fifth Amendment, so neither should identifying information.

Slate Rips Michael Moore

Fahrenheit 9/11 is a sinister exercise in moral frivolity, crudely disguised as an exercise in seriousness. It is also a spectacle of abject political cowardice masking itself as a demonstration of "dissenting" bravery.

Saturday, June 19, 2004

Hey, That's My Title!

Apparently, Ray Bradbury is upset at Michael Moore over Moore's appropriation of Bradbury's title Fahrenheit 451 for Moore's film Fahrenheit 9/11. He is entitled to his opinion, but his statement that he would rather avoid litigation on this subject seems to place too much stock in his right to his title.

If he had a claim, it would likely fall under copyright law. However, traditionally titles of works have been per se uncopyrightable. See, e.g., Arthur Retlaw & Assocs., Inc. v. Travenol Labs., Inc., 582 F. Supp. 1010, 1014 (N.D. Ill. 1984); Nimmer on Copyright § 2.16. While there may be some sort of state unfair competition law that could protect people from passing off their works as the works of others using identical titles, that is clearly not what Michael Moore is doing here.

It seems like Bradbury's only claim is to infrigement of professional politeness, however his comments illustrate a common misunderstanding about intellectual property, and one that is unfortunately spreading: Not every idea you ever created is your property for all time. If Ray disagrees with this, then maybe someone should ask him whether he got permission for everything he ever wrote that was influenced by someone else's work.

Friday, June 18, 2004

Juror Questions

The AP reports here on the Colorado court rule that will allow jurors to ask questions of witnesses. On balance, I think this is a bad idea, but I see some merit in this kind of rule.

In my experience in seeing mock juries (admittedly, not random samples of the community, nor chosen through a voir dire process, but nonetheless I think representative of the general traits seen here), and from trial tactics learned, jurors want to be told a story. One side cannot put on a random string of facts and expect to win; there must be a coherent whole that a human mind can latch on to. And, in any case, the true-life story will contain far more facts and details than what the jury will get to hear. This is by necessity--not all facts are admissible in a fair trial, and in any case time is limited.

Sometimes the human mind just wants a few more details than what one side will provide. Asking questions will allow jurors to get the answers to the burning question of "what did you have for dinner?", or "did you pick up the gun?", or even "why do these convicted felons have guns anyway?" Even if the answer is that the court cannot allow the witness to answer, there is not that lingering feeling of "why didn't the attorney ask this question!" Even if no more relevant details come out, jurors can go into deliberations with a fuller story in their minds.

Intuitively, I think this rule will favor the prosecution. A jury mindful of the burden of proof should draw all conclusions from omissions of evidence against the prosecution. In other words, if a juror thinks a certain fact is material to guilt or innocence but is not presented at trial, then it will start to build doubt in that juror's mind. Asking questions can eliminate these lingering doubts about collateral matters.

Wednesday, June 16, 2004

Tales from the Courtroom

My friend did her first real trial yesterday: an infraction for having an open container of alcohol near a liquor store. The two defendants were defending themselves. The trial went substantially as follows:

The people put on two witnesses--the two arresting officers. The first testified that he saw four men in the parking lot with paper bags in their hands, which later were discovered to contain four cans of beer, all open, all half-empty. When it was his turn to question the witness, one defendant asked only the following questions:

Q: Was there a truck parked there? A: No.Q: Was there a soda on the bumper of the truck? A: No.

The second officer then took the stand, and testified to pretty much the same thing as the first. The one defendant repeated the same two questions about the truck and the soda, getting pretty much the same response.

The people rested, and the defendants called their one witness. The testimony went as follows:

Q: Was there a truck parked there? A: Yes, the owner's truck.Q: Was there a soda on the bumper? A: No, it wasn't a soda on the bumper, it was a beer. (emphasis mine).

Props

Monday, June 14, 2004

Um, Free Speech?

Now I dislike Michael Moore's grandstanding and lies as much as the next guy, but this post over at MooreWatch is a little off. Regarding Moore's intent to use Fahrenheit 9/11 as a tool to register thousands of voters, the post ponders: "Shouldn’t activity like that, during campaign season and directly targeted against a candidate, be regulated by campaign finance laws and equal time regulations?" Well, no, because these sorts of restrictions must pass muster under the First Amendment, and even though such restrictions are constitutional when applied to contributions to candidates or parties and broadcast advertising, the rationales for upholding these laws under the First Amendment do not apply the same (if at all) to films. I am not able to comment intelligently on what the federal statutes actually prohibit, but there are a few Supreme Court cases that indicate that Moore's film may not be subject to any such regulation, or at least makes it doubtful.

As to campaign finance, the chief rationale for restrictions on contributions is to prevent corruption or the appearance of corruption. See Buckley v. Valeo. Michael Moore (and the companies bankrolling his film) are not giving money to John Kerry, the Democratic party, or anyone else; he is simply speaking about George W. Bush. A restriction on a individual expenditures not connected with a candidate's (or party's) campaign was struck down in Buckley, and that would seem to cut against finding a problem here.

As far as equal time goes, that is more of a function of the government being able to compel speech that someone otherwise wouldn't make. This is allowed in the over-the-air broadcast media because of the limited amount of broadcast channels, seeRed Lion Broadcasting v. FCC, but is not allowed for other media, including newspapers, the internet, or cable television. Films shown in privately owned theaters are certainly not over-the-air broadcasts, so I doubt that Fahrenheit 9/11 as a whole would be subject to any equal time laws.

Stickier issues come up if the film is viewed as corporate speech against a candidate (which could possibly be prohibited by Austin v. Michigan Chamber of Commerce), or when we are talking about commercial advertisements for the film (subject to diminished First Amendment protection) on over-the-air broadcast stations, but my point is that although Moore's film might very well be criticized in other ways, it is not clearly subject to campaign finance and equal time laws. Even though one might make a plausible argument for why it should be (as MoveOn.org's campaign clout may indicate as well), this is not a function of Michael Moore skirting the law; it is about free speech.

Those Darn Jurisdictional Issues

The buzz is on the unamimous 8-0 decision in Elk Grove Unified School District v. Newdow dismissing the case for want of standing. Another case decided today, Hibbs v. Winn, contains an equally interesting jurisdictional issue: Whether a statute that purports to deny federal district court jurisdiction over constitutional challenges to state tax collection actually bars district court jurisdiction to state tax collection? The majority says it does not.

The Tax Injunction Act, 28 U.S.C. Sec. 1341, reads:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.

The Court's reasoning seems to focus on the history of the Act--it was not meant to bar the prospective relief that the plaintiff's sought; it was meant to bar people from trying to get out of paying their own taxes by bringing a federal claim. The majority stated that "[Sec.] 1341 has been read to restrain state taxpayers from instituting federal actions to contest their liability for state taxes, but not stop third parties from pursuing constitutional challenges to tax benefits in a federal forum." Also, since Sec. 1341 has been dormant for many years, the Court was reluctant to resurrect it to block a constitutional challenge here (the majority begins its opinion with a recounting of tax and funding schemes used to promote racial segregation, setting the stage for its decision).

Taking jurisdiction from a lower federal court would not be a very radical thing. Ever since Sheldon v. Sill it has been largely accepted that Congress may strip lower federal courts of jurisdiction (with the possible limitation that it may not tell a court how to decide a case once it grants jurisdiction). The majority here goes very far to interpret away such an action.

If the majority's opinion translates to "federal courts, federal courts, federal courts!," then the dissent sounds its opposite: "parity, parity, parity!" Justice Kennedy sings the praises of state courts, which is where these challenges would need to be brought had the Court ruled differently. His opening lines tell it all:

In this case, the Court shows great skepticism for the state courts. ability to vindicate constitutional wrongs. Two points make clear that the Court treats States as diminished and disfavored powers, rather than merely applies statutory text.

Although perhaps the majority truly believed that the legislative history and purpose (as well as the statute's non-use) mandated its ruling, it could also simply be they have a different opinion on federalism than the four dissenters. (Jusice O'Connor, usually a supporter of federalism, might have wanted a clearer statement and better history of use before denying jurisdiction. Just a guess. She is an enigma.) The debate (my fed courts professor would be proud) is not over Sec. 1341, but about the role of federal courts in interpreting and applying federal law, and whether they are a superior system for applying federal law than state courts or coequal judges that exist at the pleasure of Congress.

Saturday, June 12, 2004

Well, There's This . . . I Guess

More Gay News

The AP reports here that a gay-rights group has organized VirginiaIsForHaters.org to urge a boycott of Virginia because of its newly passed law forbidding "[n]ot just marriage, all contracts" between same-sex partners that are the functional equivalent.

I think the Virginia legislature is (are?) jerks for doing so, but I write to remark on one aspect of this boycott. Some people object to the influence of corporations in politics. Here, however, we have an attempt to influence businesses' practice associated with Virginia in order to exert econimic influence on Virginia to achieve a political gain.

Same-Sex Marriage in NY

Chris Geidner points to this item on the New York trial court's ruling that same-sex couples must be allowed to marry. The most significant aspect about this ruling is that it purports to rule on both the state and federal constitutions, making it the first such case to my knowledge to create a federal issue on same-sex marriage. (Caveat: I cannot find the full text of the case, so I am relying on the article.)

The language of the New York Constitution's equal protection clause reads:

No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

For comparison, the relevant section of the Massachusetts Constitution relied on in Goodridge reads:

All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

The New York decision is thus breaking more new ground in this area of law; whereas the Massachusetts decision may have been based on its more expansive language, this decision may hit closer to home for many other states.

I should point out though that this case should not reach the U.S. Supreme Court, although it might. The state constitional decision creates an independant and adequate state ground for the decision mandating same-sex marriage, so even if the SCOTUS disagrees with the federal ground, its overturning the decision on that ground would make no difference, and so it would be precluded from ruling on the case. However, it could take the case if: 1) the New York Court of Appeals is ambiguous on its grounds for the decision, thus implying that it is only interpreting the state constitution because the Federal Constitution mandates same-sex marriage, creating a reviewable issue; 2) the New York Court of Appeals overrules the lower court on both state and federal grounds, and since the Federal Constitution trumps the state constitution a ruling that the Federal Constitution mandates same-sex marriage would determine the outcome of the case (i.e., the state ground is no longer adequate to support the judgement if the federal issue is reversed).

Finally, I want to correct the prevailing attorney's statement on the meaning of this decision: "This marks the first official step in the march toward full [desired benefits] for gays and lesbians in New York state. It is the first time that any court in this state has declared that same-sex couples have the same rights, same status, and same dignity as [ ] other citizen[s, except of couse those who want to exercise their desire to marry more than one person and those monsters who want to marry a relative, because the things that gays and lesbians want are more important]."

Mandatory DNA

Via How Appealing, this story from the S.F. Chronicle about a California ballot proposition to require a mandatory DNA sample from people convicted of any felony, and anyone arrested for murder or rape. Current law requires samples only from those convicted of serious felonies. The data will be stored, and may be deleted if the person is released without charges or found not guilty at trial.

Of course, not everyone is on board with this: "DNA is not like a fingerprint, since getting it is more invasive and it holds information beyond mere identification," said Tania Simoncelli, a science and technology fellow for the American Civil Liberties Union. "Storing it permanently for future criminal investigations doesn't comply with the Constitution." (emphasis added). I'm not so sure about this, and I think the statement about the constitutionality of the procedure is just a knee-jerk reaction.

The only constitional provision I can think of that could bar this is the Fourth Amendment, and possibly the Fifth Amendment's self-incrimination clause (though I think the Fifth is a long shot). Assuming that some state constitution provision does not otherwise bar the procedure (the California State Constitution's search and seizure clause is largely a nullity, but Art. I, Sec. 1 contains an "inalienable right" to "privacy," and I haven't researched this fully), I doubt the Fourth Amendment would bar such a database, especially under the Rehnquist court, but probably not under a stricter standard as well.

First is the matter of taking the DNA sample. As the article states, DNA evidence is closely analogous to fingerprinting for identification purposes, which is already permissible with even less than probable cause in the field, Hayes v. Florida, 470 U.S. 811, 816-17 (1985), and most certainly for arrests made on probable cause, which is what this initiative would require. Further, taking fingerprints is such a minimal intrustion that it may not constitute a "search" within the meaning of the Fourth Amendment at all. Id. at 814. Taking DNA by cheek swab is minimally instrusive as well, so should similarly not require a high level of suspicion or probable cause, just a lawful detention (which, again, would always be the case under the initiative). The initial sample, thus, should easily pass constitutional muster.

The second matter is the sticky one: whether databasing the information is constitutional. I think this also passes, and in any event should not so blithely be dismissed as constitionally infirm. The Ninth Circuit in Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995) upheld an Oregon DNA database that catalogued DNA from convicted murderers and sex offenders. The court reasoned:

[Oregon] produced uncontroverted evidence documenting the high rates of recidivism among certain types of murderers and sexual offenders. Moreover, investigations of murders and sexual offenses are more likely to yield the types of evidence from which DNA information can be derived, such as blood, semen, saliva, and hair evidence, than property crimes or other offenses committed without substantial personal contact. Taken together, these two facts suggest that a data bank of DNA information derived from the blood of convicted murderers and sexual offenders will help the state to identify and prosecute the perpetrators of future offenses. The creation of a DNA data bank also advances the overwhelming public interest in prosecuting crimes accurately - DNA evidence can exculpate an accused just as effectively as it can inculpate him.

The California initiative is admittedly broader, requiring DNA from all convicted felons and from people arrested for murder or rape, but could still fit under the court's reasoning. The interest in accurate prosecution is the same for the serious felonies requiring a sample upon arrest, and many other crimes have a recidivism rate and may be likely to yield DNA evidence, like robbery, burglary, kidnapping, mayhem, battery, etc. The Fourth Circuit upheld a similar Virginia database in Jones v. Murray, 962 F.2d 302 (4th Cir. 1992). These cases are have been questioned, but form a strong foundation for an argument that a DNA database is closely analogous to a fingerprint database. (The recent Ninth Circuit case questioning both Rise and Jones is United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003), but is up for rehearing en banc, 2004 U.S. App. LEXIS 89, so a more definitive ruling may come down soon.)

Asside from these legal arguments, DNA evidence is the intuitive technological step that can exist alongside fingerprints to produce more accurate law enforcement, both to find criminals and to rule out suspects. Unless there is a significant ruther privacy invasion other than identification (which I do not see), there is no reason to freeze law enforcement in the 1950s.

The other objections to the database are unpersuasive, such as the cost. The proposal is to raise money from traffic violations and fines, which the ACLU says will be insufficient. However, think of the investigative costs that will be reduced by almost immediately finding a suspect based on DNA evidence obtained from a crime scene or victim. Only time will tell if this system will pay for itself, but it seems like a step well worth taking.

The Fourth Amendment of the Constitution is not meant to set criminals free; it is meant to protect the privacy of everyone. Considering the amount of information we give the government already, why should people be protected from the government having an efficient way of unilizing purely incriminating information left at the scene of a crime?

From the Comments to the Main Page

More on Words

Anthony Rickey over at Crescat has this to say about the word "homophobia," and his opinions on the factual inaccuracy of the term as well as the possible purpose of casting a connotation of irrationality on those who disagree with some or all gay-rights issues or express negative views about homosexuals generally. I agree with much of what he says, and also think that homophobia is used too often when actual fear of homosexuality is not the driving force of certain views. Though it may accurately apply in some instances. For example, I believe many of the studies that find some people with the most vehement hate for gays are aroused by homoerotic images, suggesting some amount of self-loathing and, yes, fear of possibly being gay. However, this certainly does not apply to all those who express disaproval of homosexual activity or even express hate towards non-heterosexuals. Homophobia it seems is a convenient label to, as Mr. Rickey puts it, casts the possition as "absolutely unsupportable and beyond the bounds of reason."

I want to add my two cents to the discussion by talking about the word "racism," which I also think is overused as a politcally convenient label to attack a viewpoint. Dictionary.com defines racism as:

1. The belief that race accounts for differences in human character or ability and that a particular race is superior to others.

2. Discrimination or prejudice based on race.

To this, I think many will agree that it is almost always used with a negative connotation; no one would describe someone as a racist for suggesting any difference between races regarding anything (e.g., there are many black men in the NBA).

Yet in many instances "racism" is directed at acts or speech not much further removed from this, and produces two unfair results. First, the accused is on the defensive; he bears the burden of overcoming a social stigma unfairly attached. This is analogous to calling someone a "child molester" without a factual basis. Though different in degree, it nevertheless creates considerable embarassment, and can cause harm to the accused in public and private spheres. Second, the accuser may receive a social benefit from the accusation: Pointing out perceived racism can prove to others that the accuser has the "proper" social viewpoint, and is perceived as taking up the cause of protecting disadvantaged minority groups (I cause I agree with, my beef is that this method is disingenuous). Thus, while the accused must spend energy defending the misapplied charge, the accuser receives social accolades.

Besides this, there is also the danger of dillution--serious problems with racism and discrimination can get swept up and dismissed as politically correct overreactions when politically correct overreactions are the norm in our society. For example, I used to work in a theme park, and to this day I remember guests complaining of "racism" when their child coult not go on a ride (which they were obviously too short/tall for) when "the operator is letting all the black/white kids go on that are shorter/taller than my child!" It is a sad state of affairs when people invoke a great social wrong to try to make a small personal gain, and I wonder what other things in their lives they assumed (perhaps rightly, but I imagine to a significant degree wrongly) to be racist.

Take professional sports for another example, as this columnist points out. A reference to race is not a sign of a regressing society, yet certain remarks can launch a firestorm of criticism, and for what?

Part of the reason I worry is because I fear our culture is becoming one that is more concerned with pointing out "racists" than seriously discussing racism, to the detriment of everyone. "Racism" should not become a synonym for "someone who does not agree that social ills should be solved through speech codes," or "someone who doesn't agree that affirmative action is the best method to fight racial inequality," or just plain "someone that said something I disagree with." It should have meaning.

Thursday, June 10, 2004

Military Justice: Then and Now

Inspired by the Centrist over at Jag Central, my brief look at military justice in the early part of the twentieth century. Actually, I'm just going to report more about WWI statistics: Here are statistics on the number of executions in the British army during the Great War, topping 100 in 1917. In its short time in the war the US executed 36, though only 11 of them were overseas. I can't imagine the same practice being carried out today, since warefare is made in very different ways for very different reasons today.

The vast majority of these military executions by the British army were for desertion. I think the most unfortunate soldiers are the ones executed for sleeping on post, and cowardice.

I'd be interested in knowing if military executions are conducted today for similar crimes, or whether the practice has entirely died out (except for crimes similar to civilian crimes, like murder).

Wednesday, June 09, 2004

A Farewell to Harms

Continuing a story that has had me a little miffed for some time, the Ninth Circuit ruled that a cross in the Mojave desert violates the separation between church and state must be removed, upholding the district court ruling based on the Establishment Clause. The cross is a monument built by World War I veterans in 1934 to honor all who died in war.

I have a soft spot for WWI veterans. The casualty rates alone show how much of a butchering some countries took. The United States declared war in April 1917, and Armistice was November 1918, though the actual period of Americans fighting was shorter because it took time to train and transport troops to France. In that time, 126,000 Americans died (many from disease). Compare with the 58,000 killed in the roughly 18 years of the Vietnam War.

The human being in me wonders what's so wrong about a cross in the desert if it honors these dead (and others as well). I'm not a christian, but I can appreciate the cross as a symbol of something beyond this earth that means a great deal to a great many people. And as a future lawyer, I wonder whether the line between my simple understanding of the cross and the ideals of the Constitution are so opposed to each other. I wonder why our founding document is so opposed to a solemn monument seen by maybe twenty people a day, but which means a great deal to many veterans. I wonder if the ACLU is going to start making sure there is never a Star of David in a public school.

I wonder whether more people will be relieved that the christian symbol they will never see is erased from federal land, or if more people who will never get to see the cross will miss it. A few veterans' monument has been labelled unamerican, and I can't help but see the irony, yet I can offer no solution.

Cool Stuff

This last weekend I attended a wedding in Hawaii. It was my first time to the state, and it was largely cool.

By far the coolest thing I got to see was the USS Bowfin submarine at Pearl Harbor. I've always been a WWII submarine buff, and going aboard the vessel was a real treat. From the moment I stepped on board, I got the sense that this was a true machine of war. The designers must have had an utter disdain for the crew needed to deliver the vessel's torpedoes into enemy hulls; it was claustrophobic just walking through it with two people, and so I could just begin to imagine what life was like for a crew of about 80. The cots in the torpedo rooms say it all.

The WWII diesel submarine is truly a marvel of engineering, and I an in awe of the heroes who crewed these machines and won the war in the pacific.

Thursday, June 03, 2004

I'm Confused

The American Civil Liberties Union on Wednesday reached a tentative agreement with Los Angeles County government to replace a historic cross on the county seal with depictions of a Spanish mission and Native Americans. (emphasis added)

Why does the ACLU need to agree with anything? The county could vote to change the seal to have a giant middle finger and a burning flag, and the ACLU could no longer bring their suit on Establishment Clause grounds.

The only thing I can think of is that the ACLU could still sue because there are many seals still around, and the case would not be moot even after a vote to change the seal because the docrtine of "voluntary cessacion of illegal activity" might not render the case moot. However, this would be a PR disaster for the ACLU: forcing a county to pay for litigation to change something they are changing anyway.

I dislike that the ACLU has such a role in this already unnecessary change (that the county nonetheless is permitted to make), and is celebrating it on politically correct, non-constitutional grounds:

The county has offered something that will be more inclusive and representative for the residents of the county.

Even if I were to concede that it were more "inclusive" for excluding the cross, I doubt a Spanish mission and Native Americans are more "representative" of the population of Los Angeles--I'd put money on the vast majority of latino immigrants being christian, as well as many residents of other ethnicities. I doubt the old Spanish or Native population outstrips this demographic. And, of course, if the cross merely represents history, then whether it is representative of the population is irrelevant.

Wednesday, June 02, 2004

My Least Favorite Defenses

Being that I'm interning for the L.A. City Attorney this summer, I think I should blog something periodically about criminal trial work. I'll start today with my least favorite defense: the absent witness.

This defense is put on when only a few of the possible witnesses take the stand for the prosecution. The defense attorney then asks why these other witnesses (whose unheard testimony is surely chock full of currently unknown details) did not testify for the jury. The goal is to make create doubt from a seemingly incomplete story, and make the people's case look haphazard and as if they ignored other relevant leads. From what I can tell, this is proper as long as the attorney doesn't argue that the jury should speculate as to what this testimony would have been, only that its absence is noteworthy.

My dislike for this defense is simple: It is disingenuous. The defense can subpoena anyone it wants, and must be made aware of all exculpatory evidence that a witness could provide, so therefore if the absent testimony is relevant there is nothing at all keeping it from the jury. Instead of this reality, the absent witness is presented as a mini coverup. Also, it borders on improper speculation.

Next I might blog about my least favorite tactic that, probably more often than not, works in the state's favor: moral turpitude used to impeach credibility.

Another Milestone

Tuesday, June 01, 2004

More Abortion News

A federal judge declared the federal ban on partial-birth abortions unconstitutional, the SF Chronicle reports. In a 120-page opinion, Judge Phyllis Hamilton said that the ban could endanger women's health, and puts a "substantial obstacle" in the path of a woman seeking an abortion. Link via How Appealing.

This is all to be expected, since if one doesn't buy the government's legislative finding that the particular procedure is never necessary to protect the health of a woman, then the ban is identical to the one found unconstitutional in Stenberg v. Carhart.

However, I think I could have kept this opinion under a page: Congress enacted the ban under its commerce power, but partial-birth abortions do no affect interstate commerce, so Congress had no power to enact this ban. Thus, the law is unconstitutional.